M.T. Joshi, J.

1. Heard both sides.

2. Aggrieved by the conviction for the offences punishable under section 307 r/w. 34 of the Indian Penal Code and consequent sentence to suffer rigorous imprisonment for five years and to pay fine of Rs. 5,000/- in default to suffer simple imprisonment for six more months, both the original accused Nos. 1 and 2 have preferred the present appeal. They were acquitted of the offences punishable under section 324, 323 r/w. section 34 of the Indian Penal Code.

3. The prosecution case in short is as under:-

That injured complainant - Mahesh Magar, while in the hospital, complained that on 22/5/2008, at about 5.00 pm. when he was sitting in front of his house at village Warud, Dist. Osmanabad, at that time, present appellant No. 1 - Manoj, who is resident of Bhimnagar was passing by the road. He was making faces and clenching his teeth by seeing at the informant. He went ahead for some steps and again returned back. He abused the complainant. Thereafter, he slapped him and, thereupon, threatened that he would see him later on. The complainant narrated the said incident to his uncle Dinesh Magar. Thereafter, on the next day i.e. on 23/5/2008, at about 11.00 am. appellant No. 1 - Manoj was again seen going from the road. At that time, the complainant's uncle asked him regarding the earlier incident. The appellant No. 1, thereupon threatened that he would see them and went running to Bhimnagar. Thereafter, he returned at the spot with 3-4 boys. They had sword and knives with them. They included the present appellant No. 2 - Somnath, two children in conflict with law, namely, Rameshwar and Samadhan. All of them started abusing the complainant and his uncle. They also assaulted the complainant. Appellant No. 1 - Manoj gave a stab wound with sword on the stomach on left hand side of the complainant. Another blows of sword were given on the finger of right hand and chest. Appellant No. 2 - Somnath gave blows of knife on the head and forehead of the informant. Informant's uncle Dattu and father Babasaheb intervened. At that time, Rameshwar gave blows of sword to them while Samadhan gave blow of sword to the complainant's grandmother Sheshabai. Thereafter, all of them ran away. On the basis of this complaint, crime came to be registered.

P.W. 13 - P.I. Anjum Shaikh carried the investigation as usual. She prepared the panchnama of the spot of occurrence. The present appellants made a statement leading to the recovery of the sword and the knife. The statement of the eye witnesses were recorded. The clothes of the injured were seized. Weapons were sent for chemical analysis. Injury certificates were collected and ultimately, the chargesheet came to be filed.

4. Upon committal of the case, the charge was framed. Plea of the present appellants is that of total denial. According to them, the injured complainant fell down on a pointed iron rod of cement pole by the side of the road and by taking undue advantage of the injuries on his person, has falsely filed the complaint. The learned Additional Sessions Judge, however, found that the case of attempt to commit murder in furtherance of common intention is proved beyond reasonable doubt against the present appellants. Hence, the conviction and sentences, as detailed supra came to be recorded.

5. Both learned counsel for the appellants i.e. Mr. Chapalgaonkar and Mr. Jadhavar took me through the evidence on record. They submitted that the evidence on record would show that there was communal tension in the village since long, previous to the present incident. P.W. 4 Tanaji Gadhave, the so-called President of the Tanta Mukti Samiti was himself an accused in the earlier riot case which was pending in the same Court. The medical evidence is perfunctory. P.W. 7 Dr. Milind Pol, who has merely preliminary treated the injured and though admittedly the injured was admitted to Civil Hospital at Solapur, no record of the same was produced. P.W. 7 Dr. Pol, though speaks about